On May 4, 2020, Chris Loh published “PTAB Establishes Two-Part Framework for Denying Institution of IPRs Based on Previously Presented Art or Argument” in IPWatchdog. The following is an excerpt:
Earlier this year, the Patent Trial and Appeal Board (PTAB) established a two-part framework for applying 35 U.S.C. § 325(d), under which the PTAB may deny institution of an inter partes review (IPR) if substantially the same art or arguments previously were presented to the U.S. Patent and Trademark Office (USPTO). This framework injects a degree of rigor into the PTAB’s discretionary Section 325(d) determinations and suggests ways that IPR participants may more effectively raise or resist Section 325(d) arguments. The framework and its practical implications are discussed below.
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